Domestic Violence and Asylum

As news coverage and public outrage about children and parents separated at the border has escalated, Attorney General Sessions announced a reversal of asylum precedent that has gotten less attention, but also has vastly dire consequences—domestic violence will no longer be considered grounds for asylum.

For many women, domestic violence is a daily reality, impacting their well-being, limiting their options, and threatening their lives and those of their children. In the Northern Triangle of Central America (NTCA, comprised of El Salvador, Guatemala, and Honduras) and parts of Mexico these crimes are frequently normalized as accepted burdens for women (who are the primary adult victims) in male-dominated societies. For decades, domestic abuse survivors from these nations have sought asylum in the U.S., but it is only in the last several years that a precedential ruling made asylum for those individuals legally possible, even as judicial discretion and biases could not guarantee a positive outcome. All that changed instantaneously with Attorney General Jeff Sessions’ announcement in June that domestic violence (as well as gang violence) will no longer be considered grounds for asylum, reversing the case of a Salvadoran woman granted asylum in 2016 (Matter of A-B) that he’d certified to himself a few months ago and undoing years of legal efforts to protect domestic abuse survivors.

DOMESTIC VIOLENCE GROUNDS: In 1951, after the world experienced a wave of World War II refugees, the United Nations Convention Concerning the Status of Refugees established that asylum seekers could qualify for protection when demonstrating a well-founded fear of persecution in their home country, based on membership in any of five categories: race, religion, nationality, political opinion, or membership in a particular social group. Notably absent from the list is “gender,” though it is often a primary reason for discrimination and persecution. Over the years, attorneys for domestic violence survivors sought asylum under the fifth criteria—membership in a particular social group—but success was rare and difficult to achieve (as indeed it is in most asylum cases; for every approved applicant, there are 10 asylum seekers who are not approved [Department of Homeland Security, 2016]), and even the victories did not set precedent.

After years of legal uncertainty for asylum-seeking survivors of domestic violence, the Board of Immigration Appeals (BIA), the highest immigration tribunal in the U.S., issued a 2014 landmark decision in Matter of A-R-C-G (initials drawn from the names of the asylum seekers)—they recognized domestic violence as grounds for asylum. More explicitly, this precedent-setting decision held that “married women in Guatemala who are unable to leave their husbands” constituted a particular and persecuted social group.

In the case they reviewed, Ms. C-G had suffered brutal beatings, rapes, burns, and a broken nose at the hands of her husband as well as death threats when she attempted to leave while the police refused to get involved in family disputes. Citing the government’s obligation to protect citizens without discrimination, BIA found that the Guatemalan government failed to intervene or protect Ms. C-G based on her membership in this group. This ruling laid the groundwork for subsequent asylum cases based on domestic violence invoking the “particular social group” criteria. Using this strategy and against all odds in an Arizona court considered “unfriendly” to asylum applicants, the Florence Project, a KBI partner, mounted a successful asylum case for Elbia (not her real name), a Guatemalan woman who was forced into a severely abusive relationship at the age of 15. In test cases like this one and in others, the BIA precedent was pivotal in providing refuge and saving lives.

ASYLUM FOR SURVIVORS: Seeking asylum is a daunting endeavor. To be allowed to pursue their claims, asylum applicants must pass a credible fear interview. In recent years, this process has been conducted against the backdrop of escalating anti-immigrant sentiment in the U.S. and growing skepticism, bordering on contempt, of persecution claims within immigration agencies. In his decision to reverse Matter of A-B, Sessions himself called into question not only the claim that the Salvadoran government failed to protect Ms. A-B, but the truth of her abuse claims to begin with. Yet according to a Centers for Disease Control report, depending on the Latin American country, anywhere from 15% to over 50% of women experience domestic abuse, and the U.S. State Department has documented extensive human rights violations in these countries.

Once a claimant’s fear is deemed credible, a series of hearings ensues, often taking as long as several years to complete. Asylum seekers must meet the aforementioned asylum standards and show they have suffered persecution. Women seeking asylum on domestic violence grounds must provide evidence of abuse—police reports, hospital records, expert testimony, and corroborating statements—and additionally, persuade the judge that they are part of a particular social group and persecuted for being part of it. Even during the years when the BIA precedent applied, a strong, well-presented case was no assurance of a positive outcome.

IMPACT OF DECISION: In reversing that single 2016 asylum case, Sessions overturned the precedent of Matter of A-R-C-G, effective immediately, asserting that domestic violence survivors are not deserving of protection. His decision invalidates current asylum cases in this category as well as jeopardizes credible fear findings for anyone intending to seek asylum on domestic (or gang) violence grounds. In fact, credible fear denials are already on the rise. Sessions has this authority because immigration courts are part of the executive branch (rather than the judiciary), falling under the jurisdiction of the Department of Justice; in his capacity as Attorney General, Sessions can direct judges in immigration law enforcement as well as reverse asylum decisions (though only one at a time, not en masse).

With Sessions’ directive, immigration judges are now required to apply the new standard. Here, the subject of judicial discretion is relevant. Being granted asylum often depends on where and by whom a case is heard, and success rates for asylum cases vary across the country. These discrepancies have only grown more polarized over time (Syracuse University), so much so that the result of a case can often be predicted based on who the judge is. Now, judges can further draw on any part of Sessions’ written explanation of his reversal—dozens of pages long, and referencing “private violence” and “nongovernmental actors”—to justify denying asylum to domestic violence survivors as well as individuals fleeing different dimensions of gang-based violence. Yet in the NTCA, these crimes are so pervasive, they represent systemic issues rather than household or private matters. In addition, though the NTCA and parts of Mexico have laws addressing violence against women on the books, report after report show that they are seldom enforced.

CONCLUSION: The timing of this reversal coincides with the separation of migrant children and parents at the border, rising immigrant prosecutions, and longer family detention as well as a rollback of asylum rights and a false narrative of asylum seekers exploiting the system. Seeking asylum is a human right, internationally codified and mandated by several U.S. treaties. Though there are bound to be court challenges to Attorney General Sessions’ decisions, it could take years for appeals courts to rule on them. It is also possible for Congress to amend immigration law to include gender as grounds for asylum or itemize common gender-based claims, such as domestic violence, forced prostitution, honor killings and genital mutilation. This would be another long road, and political will has been sorely lacking for decades.

Ignoring gender-based violence is not a solution, and this new misapplication of asylum law will almost certainly result in the deportation of thousands of domestic abuse survivors back to the perilous situations they left. And the need to protect domestic violence survivors only gets more urgent. Of 711,000 immigration cases currently in process, approximately 230,000 are asylum claims from Central Americans and Mexicans, a large portion of which are based on domestic violence. U.C. Hastings Center for Gender and Refugee Studies estimates that fully half of asylum seekers have claims based on domestic violence.

In 2015, the United Nations High Commissioner for Refugees (UNHCR) published a significant study of 160 female asylum seekers from NTCA and Mexico, entitled Women on the Run. Their findings are disturbing and reveal how prevalent domestic abuse is in these countries and how little protection and recourse women have:

• 60% reported the violence to local authorities but received inadequate or no protection;
• 40% did not bother reporting assaults because they felt it was useless to do so;
• 10% identified police or other government authorities as the source of their harm; and
• 100% indicated that violence (domestic or gang-related, sometimes a combination) was a near-daily experience in their lives.

The UNHCR calls for (1) all women who express fear to have the opportunity to present their case for asylum; (2) all governments to conduct asylum proceedings in accordance with international law and provide safe and legal avenues to asylum; and (3) immigration policies that protect the legal right to asylum. In addition, migrant advocacy and legal aid organizations have been at the fore, working on behalf of asylum seekers, and will continue to do so in this increasingly hostile environment. The KBI accompanies women, many who have escaped domestic or gang violence; offers informational orientations in Mexico to families considering asylum; and with the Florence Project, provides legal assistance through our legal fellow. We continue this work in earnest, with the help of our supporters and volunteers, to stand in solidarity with those who have suffered violence and seek safety, and against policies and practices that violate their rights or expose them to further harm.